Can I still claim if the accident is caused by a mechanical fault in the vehicle?

As a general rule:

You can claim third party compensation from the Insurance Commission (‘ICWA’) if your injuries are directly caused by the driving of a motor vehicle. But what does that mean? The leading case on this is the 2009 High Court case of ICWA v Container Handlers. In that case a low loader truck being driven in a remote part of Western Australia suffered a mechanical problem – the wheel hubs seized. The driver stopped, got out, and began to jack up the truck to remove a wheel. The truck passenger helped him. In the process of jacking up the truck, the truck slipped off its jack and the passenger’s hand was crushed. The passenger made a claim and argued that his injuries should be covered by ICWA. He argued that the wheels seized while driving, and that changing the wheel was connected to the driving, and so he should be covered. The Court looked at what the Third Party Insurance policy required and held that to have a claim the injury must be caused by some aspect of the driving of the vehicle. They said that for purposes of a third party claim, driving was limited to the actual operation and control and direction and speed of the vehicle. Because the passenger’s injuries were not related to the control of the truck his claim was not covered by ICWA. The passenger lost.

In the case of Maitland-Smith v Path Transit the claimant was a bus driver. He claimed that he had injured his back because the seat of his bus kept collapsing. He argued that sitting on the seat was a necessary part of ‘driving’ the vehicle, and therefore ICWA should pay the compensation. The Court followed the Container Handlers case and said that the bus driver had not proven that the seat had collapsed because of the driver’s “management and direction of the motion of the bus”,i.e: there was no proof that what was broken in the seat was caused by the driving of the bus. The driver argued that that should be inferred i.e: obviously the seat collapsed because of the driving of the bus. The Court said no: you need to prove that the seat collapsed because of the driving, you cannot infer it.

In some other cases the Court has rejected claims for example where a forklift driver was trying to manoeuvre a pipe into place and a colleague was injured: in that case the Court held that the injury was incidental to the driving, not caused by the driving. In other words, the forklift was not actually moving and was really just being used as a type of hoist. In another case a man was injured by a garbo truck when the driver extended the wheelie bin arm and hit a pedestrian. Again the accident was held to not be part of the driving of the truck.

The point of the cases is that to make a claim in circumstances where injuries are caused by a mechanical fault, you need to have strong factual evidence that the mechanical fault was caused by the negligent driving of the vehicle ie: that in controlling the car, in operating the controls, the driver did so in a way  which caused the mechanical fault, and then you were injured. For example; if you can prove that a driver drove negligently such that tyre burst and then the car was in an accident because of the burst tyre, then you may have a claim.

That is not to say that you won’t have a claim against a different insurer. For example in the Container Handlers case and in the Maitland-Smith case even though their claims against ICWA failed, they still had good claims against their employers under employer liability law.

Each case is different and needs to be assessed on its own facts. For that reason you should chat to an experienced motor vehicle accident compensation lawyer if you have any questions about making a claim.